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Paul Kaminski, et al v. Township of Toms River

April 14, 2011


The opinion of the court was delivered by: Wolfson, United States District Judge:



Plaintiffs Paul Kaminski, Stephen J. Russell, Frank L. Palino, and Richard T. Ross (collectively, "Plaintiffs"), initiated this § 1983 action against defendants, International Association of Chiefs of Police ("IACP"), the Township of Toms River, Michael Mastronardy, Vincent Pedalino, Stephen Gerding, Raymond Maloney, William Morsch, Michael Miller, Christopher Dudzik, Christopher Anderson, Patrick Dellane, Shaun O'Keefe, Jeffrey Lennox, Michael Brosnan, Brian Nesta, Gregory Hopper (collectively, "Defendants"). This action arises out examinations given to Toms River's police officers for promotional purposes. Plaintiffs, who were police officers at the time of the examinations, allege that Defendants gave preferential treatment to select examinees, which resulted in Plaintiffs being ineligible for certain promotions in violation of their constitutional rights. Presently before the Court is a motion to dismiss Counts one, two, five and seven of the Complaint and in the alternative, a motion for a more definitive statement, filed solely by defendant IACP. For the reasons that follow, the Court dismisses Counts one, two, five and seven against IACP; and Plaintiffs are directed to provide a more definite statement with respect to Count six.


Because IACP moves to dismiss pursuant to Rule 12(b)(6), the Court will assume the allegations in the Complaint as true. Moreover, the Court will only recount those allegations pertinent to resolve the instant dispute. In 2006, Toms River, through its police department, administered promotional examinations to police officers. Compl. ¶ 27. The examinations were used to determine which police officers would be promoted to the rank of Sergeant or Lieutenant. Id. The examinations were approved by the Toms River Township Council, and the township entered into a contract with IACP to administer the examinations. Id. at ¶ 28. The contract between Toms River and IACP (the "IACP Contract") specifically delineated the purpose of IACP's involvement in the examination process:

[t]he Association will conduct a job analysis and develop and administer a written examination and in-basket exercise for the purpose of assisting the Agency in evaluating individuals to serve as Sergeant in the [Dover] Township Police Department.*fn1 The Association will conduct job analysis and develop and administer a written examination, and oral presentation exercise, and in-basket exercise for the purpose of assisting the Agency in evaluating individuals to serve as Lieutenant in the Dover Township Police Department. The Association will also provide trained evaluators, data collection and computation for employee evaluations, and association reports.

Id. at ¶ 29; The IACP Contract dated December 1, 2006 at ¶ 2. Moreover, the contract also specifies that IACP will "[i]n all matters pertaining to [the contract]" act "as an independent contractor and neither the [IACP] nor any officer, employee or agent of the [IACP] be deemed an employee of [Toms River]." IACP Contract at ¶ 9.

The Sergeant's examination, which was announced on July 26, 2006, consisted of four (4) sections. Compl. ¶ 31. The first section was a written section, comprised of one-hundred (100) multiple-choice questions. Id. at ¶ 32. This portion was worth a total of 35% of the examination, and was objectively graded. Id. The multiple-choice questions were both written and graded by IACP. Id. at ¶ 33. "Longevity" counted for the second portion of the examination, and carried a weight of 10% of the total exam. Id. at ¶ 34. For every month of service, 0.0555 points were added to the applicant's score, for a maximum number of 10 points. Id. Half of these points were added to the multiple-choice section, and the remaining half were added to the final score. Id. Fifty-one Toms River police officers took the Sergeant's examination on December 3, 2006. Id. at ¶ 35. Only those examinees whose scores were in the top 25 were permitted to take the remaining portions of the Sergeant's exam. Id. Plaintiffs were among those examinees who scored in the top 25. All other examinees were eliminated from taking the other sections of the exam. Id.

The third section of the Sergeant's Exam was an "in-basket" written exam. Id. at ¶¶ 36, 39. This portion was comprised of hypothetical-situational questions to which each examinee gave a response. Id. ¶¶ 36-37. This section accounted for 35% of the total exam. Id. at ¶ 36. A portion of these questions were allegedly written by defendants Mastronardy and Pedalino, contrary to the IACP Contract. Id. at ¶ 38. In the fourth portion of the exam, the records of each examinee-police officer were reviewed by three evaluators. This final portion of the examination was worth 20% of the total exam. Id. at ¶ 40. Lieutenants Steven Gerding and Mitch Little comprised the evaluator-panel, with an alternate third panelist selected by the examinee. Id. Plaintiffs Kaminski, Russell, and Palino each chose Sergeant Wetzel as the alternate evaluator. Id. The evaluation section of the Sergeant's exam was scored by the panel, and not by IACP. Id. at ¶ 42.

Seven out of the twenty-six officers who passed the multiple-choice portion of the examination were promoted to the position of Sergeant; Plaintiffs were not among the officers who were promoted. Id. at ¶ 45. The official results of the examinations were never published. Furthermore, at the time the examinations were administered, the officers who took the exam were unaware that the manner in which the examination was administered was allegedly inappropriate. Id. at ¶ 46. After the exam, Plaintiffs learned that scores had been allegedly manipulated by certain senior officers; seniors officers were upwardly adjusting the scores of those examinees favored by both the Chief and the Deputy Chief. Id. at ¶¶ 43, 51. The gist of Plaintiffs' claim is that the Sergeants exam was "manipulated and tainted to favor certain police officers" in violation of Plaintiffs' constitutional rights. Id. at ¶ 51.

Subsequently, Plaintiffs filed a seven-count Complaint against Defendants. Specifically against IACP, Plaintiffs assert three separate counts pursuant to § 1983, i.e., Counts one, two and five. In addition, Plaintiffs assert a count for breach of contract, i.e., Count seven, and an unidentified cause of action in Count six. IACP moves to dismiss Counts one, two and five, contending that it is not a state actor acting under color of state law for the purposes of § 1983. IACP also moves to dismiss Count seven because it claims Plaintiffs do not have standing to bring a breach of the IACP Contract. In the alternative, IACP asks the Court to direct Plaintiffs to file a more definite statement pursuant to Fed. R. Civ. P. 12(e).


I. Motion to Dismiss

A. Standard of ...

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